Economic Experts in Criminal Antitrust Price Fixing Litigation: Discovery and Scope
Antitrust Report, October 2022
In their article in the October 2022 issue of Antitrust Report, Analysis Group authors explore differences in the roles of economic experts in antitrust criminal litigation under the per se standard – compared to civil litigation under the rule-of-reason standard – involving allegations of price-fixing, bid rigging, or market allocation. After noting an increase in antitrust criminal enforcement activity, the authors – Manager Solvejg Wewel; Managing Principal Samuel Weglein; and Vice Presidents David Toniatti, David Smith, and Chris Feige – examine the expert discovery process in criminal litigation relative to civil litigation. Using examples from three recent price-fixing cases – US v. Richard Usher, et al.; US v. Akshay Aiyer; and US v. Christopher Lischewski – they explore the ways in which economic experts’ work impacted, for example, the development of legal strategy.
The authors then address the potential contributions of economic experts – in particular, providing context, presenting evidence of certain economic conduct, and opening the door to alternative explanations for evidence – to discovery, even in criminal antitrust matters in which the per se standard, rather than the rule-of-reason standard, is applied. They conclude by acknowledging the disparate nature of pre-trial rulings and the different requirements for presentation of economic analyses in the two types of cases.